General terms and conditions for sale of goods and services

General Terms and Conditions updated as of 23 February 2017.

1 Scope and application of the General Terms and Conditions
1.1
These general terms and conditions for sale of goods and services (the “General Terms and Conditions”) shall apply to and form an integral part of all agreements entered into between Best of Breed AS, organization number 986 231 765 (“Best of Breed”) as seller and the customer (the “Customer”) as purchaser of hardware, software, integrated IT solutions, maintenance, support and consultancy services or other goods or services (such products and services collectively referred to as “Products”), unless and to the extent the Customer and Best of Breed explicitly agree otherwise in writing.

1.2
The Customer’s standard or general terms and conditions are explicitly rejected and will be disregarded by Best of Breed, irrespective of whether such terms and conditions are presented or referred to by the Customer before, in connection with or after the conclusion of the agreement for sale of Products from Best of Breed to the Customer.

1.3
Terms and conditions stipulated in agreements entered into between Best of Breed and its suppliers of Products and/or such suppliers’ standard terms and conditions shall apply correspondingly in the contractual relationship between Best of Breed and the Customer, provided however that such terms and conditions are invoked by Best of Breed and relate to the Products purchased by the Customer. In case of conflict between such terms and conditions and these General Terms and Conditions, the latter shall prevail.

1.4
If any of the provisions in the General Terms and Conditions should be deemed invalid or unenforceable by a court of competent jurisdiction or administrative action, such provision shall be deemed severed from these General Terms and Conditions without any effect on the other provisions, which shall remain in full force and effect.

1.5
In case of conflict between the General Terms and Conditions and provisions stipulated in other agreements entered into between the Customer and Best of Breed, the latter shall prevail.

1.6
These General Terms and Conditions do not apply to end users of Products who are not Customers, nor constitute any contractual relationship between Best of Breed and such end users of Products, unless otherwise is agreed.

2 Quotation and conclusion of agreement
2.1
Any quotation by Best of Breed is open for the Customer’s acceptance within the offer period stated in the quotation, or, within 30 days from the date of the offer in case no offer period is stated. Notwithstanding the foregoing, any offer may be withdrawn by Best of Breed at any time prior to its receipt of the Customer’s acceptance of the offer.

2.2
Agreement for sale and purchase of Products is concluded and binding when there is an unconditional acceptance of 1) Best of Breed’s quotation/offer by the Customer or 2) Customer’s order by Best of Breed.

2.3
The exchange of quotation/offer and acceptance between the Customer and Best of Breed shall be made in writing, either by e-mail correspondence or other form of written communication. Oral agreements shall not be binding until confirmed by Best of Breed in writing.

3 Delivery and transfer of risk and ownership. Delayed delivery.
3.1
Products subject to physical delivery shall be delivered Free Carrier (FCA, Incoterms 2010) at Best of Breed’s business address to a carrier designated by Best of Breed, unless otherwise is agreed in writing. The risk and the title to the Products are transferred and passed to the Customer at the time of delivery.

3.2
Agreed delivery dates are approximate and may be subject to adjustments by Best of Breed. Best of Breed shall without any undue delay inform the Customer of any significant changes to agreed delivery dates. Delivery of Products within a reasonable time before or after the agreed delivery date shall not constitute a breach of contract.

3.3
The Customer shall have the right to cancel and terminate the affected and undelivered portion of the order or the agreement only in case the delay constitutes a material breach of contract. Best of Breed shall not in any event be liable for any damages, costs or loss incurred by the Customer or third party caused by, or attributable to, Best of Breed’s delayed delivery or non-delivery of Products, irrespective of whether such delayed delivery constitutes a material breach of contract or not.

3.4
Best of Breed is entitled to make partial deliveries, unless otherwise is agreed in writing.

4 Prices
4.1
All prices quoted by Best of Breed are exclusive of VAT.

4.2
Prices are based on delivery Free Carrier (FCA, Incoterms 2010) at Best of Breed’s business address. Freight, in case of physical transportation/delivery, shall be organized by Best of Breed and charged to the Customer in accordance with agreed delivery terms and actual carrier costs.

4.3
Prices quoted by Best of Breed shall only apply to the specific order in question and not future orders, unless otherwise is agreed in writing.

5 Payment
5.1
Unless the Customer and Best of Breed have agreed otherwise, Best of Breed shall invoice the Customer upon shipment or delivery of the Products and in accordance with the agreed delivery terms. Unless the invoice states otherwise, net payment is due within 14 days after date of invoice.

5.2
In addition to other rights and remedies Best of Breed may have under applicable law, interest will accrue on late payments of due invoices at the rate of 18 % per annum or the applicable statutory rate, whichever is higher, until due amounts are paid in full.

5.3
Best of Breed reserves the right to require that the delivery of Products shall be conditioned on cash on delivery, payment in advance or other payments terms as it deems fit. In the event of any payment default by the Customer, Best of Breed shall be entitled to suspend the delivery of ordered Products and cancel new orders until due amounts are paid in full.

5.4
Best of Breed has vendor’s mortgage rights (in Norwegian “salgspant”) in delivered Products until the Customer has paid the purchase price in full. Until then, the Customer in not allowed to use the Products as security or collateral.

5.5
Best of Breed is entitled to retrieve delivered Products in case they are not paid at due date. Upon request, the Customer shall immediately return such Products to Best of Breed.

6 Limited liability
6.1
Best of Breed ‘s maximum and accumulated liability towards the Customer related to Best of Breed’s performance, whether based on provisions in these General Terms and Conditions, other agreements entered into between Best of Breed and the Customer, applicable law, statutes, tort law or otherwise, and irrespective of Best of Breed’s conduct (whether negligent, grossly negligent or willful), shall in any event be limited to an amount equal to the purchase price or value of the disputed Products, whichever is lower.

6.2
Best of Breed shall not be liable towards the Customer for any consequential or indirect losses or damages caused by Best of Breed’s breach of its contractual obligations, whether based on these General Terms and Conditions or other agreement entered into between the Customer and Best of Breed.

6.3
Best of Breed shall in no event be liable towards the Customer for any losses or damages related to loss of profit, revenues, goodwill, anticipated cost savings, production, contracts or data/information stored in/by the Products, or losses or damages relating to other equipment, services, property or personnel, not even if such loss or damage is caused by the Products.

7 Warranty
7.1
Best of Breed warrants that the Products in all material respects conform to specifications given by Best of Breed and/or the manufacturer of the Products, and that the Products shall be free from defects for a period of 12 months, calculated from the date of delivery.

7.2
The warranty does not extend to any implied warranty of fitness for a particular purpose or use, irrespective of whether such purpose or use has been communicated by the Customer to Best of Breed or not.

7.3
Best of Breed does not warrant that its Products conform or comply with any requirements with regard to functionality or compatibility, or other technical or operational features or criteria, which are not a part of or derived from product specifications given by Best of Breed or the manufacturer of the Products. It is the sole responsibility of the Customer to ensure that the Products meet the Customer’s or third party’s individual requirements and expectations, e.g. through product assessment or testing.

7.4
The warranty shall only apply to Products which have been paid for in full.

7.5
The warranty shall be for the benefit of the Customer only. The warranty does not extend to end-users, agents or representatives, or to other third parties.

7.6
Best of Breed shall, at its option and within reasonable time, either repair, replace or refund defective or non-conforming Products covered by the warranty.

7.7
This limited warranty constitutes the entire liability of Best of Breed towards the Customer with regard to defective or non-conforming Products. The Customer shall not be entitled to pursue any other claim or remedy related to defective or non-conforming Products otherwise available under applicable law.

8 Warranty claim procedure – warranty exemptions
8.1
The Customer shall notify Best of Breed without undue delay after it has detected that the Products are non-conforming or defective.

8.2
Repair or replacement of Products is carried out by Best of Breed or third party service partner designated by Best of Breed. Best of Breed or the designated service partner shall within reasonable time examine the Products and determine whether the alleged non-conformity or defect constitutes a breach of warranty.

8.3
In case Best of Breed concludes that there is a breach of warranty, Best of Breed shall cover all cost related to the repair or replacement of the defective Products within the warranty period, however not including the cost of transportation of the repaired/replaced Products from Best of Breed or its designated service partner to the Customer.

8.4
The Customer’s costs and expenses related to a warranty claim, e.g. labor, installation or de-installation costs, are not reimbursed or covered under the warranty.

9 Maintenance of Products
9.1
Maintenance of Products includes various software updates and software patches designed to obtain and maintain the functionality of delivered Products. Maintenance of Products is offered to the Customer to the extent all applicable maintenance fees have been paid for in full.

9.2
Maintenance of Products, e.g. in the form of software updates, software patches, repairs and upgrades, are offered by Best of Breed insofar and as soon as such products or services are available from the supplier or manufacturer of the Products, provided that the maintenance products or services in question are approved and distributed by Best of Breed.

9.3
Prices quoted by Best of Breed in relation to Products do not include maintenance products or services, unless otherwise is explicitly stated in writing by Best of Breed.

9.4
Maintenance fees paid by the Customer do not include services performed by Best of Breed in relation to maintenance of Products. Such additional services are charged to the Customer in accordance with the applicable hourly rate set by Best of Breed.

9.5
As some of the Products are subject to mandatory maintenance, sale of Products may be conditioned upon the entering into of a maintenance agreement between the Customer and Best of Breed.

9.6
The Customer shall not purchase maintenance services related to the Products from other than Best of Breed, unless otherwise is agreed between the Customer and Best of Breed.

9.7
The actual delivery of maintenance services to end users of Products shall be coordinated and agreed between the Customer and Best of Breed. The Customer shall ensure that Best of Breed is given unhindered access to printers, computer systems, servers and/or site premises necessary for the performance of the maintenance services.

10 Support services
10.1
Best of Breed offers various support services related to the Products. Best of Breed decides whether such support services, being provided by telephone, e-mail, remote access or onsite support, shall be performed by Best of Breed itself or by the supplier(s) and/or manufacturer(s) of the Products, depending on type of Products and support needed.

10.2
Delivery of support services to end users of Products shall be coordinated and agreed between the Customer and Best of Breed. Without consent from Best of Breed, end users of Products purchased by Customer may not request support services directly from Best of Breed.

10.3
Unless otherwise is agreed between the Customer and Best of Breed in a separate agreement, support services delivered to end users of Products or the Customer are charged to the Customer and invoiced at the applicable hourly rate set by Best of Breed.

10.4
Support services shall be available to the Customer on an ongoing basis within Best of Breed’s ordinary office hours. Best of Breed shall respond to any request within reasonable time, provided that the request for support has been made by the Customer and/or the end user of the Products via Best of Breed’s support portal (bestofbreed.no) or e-mail to support@bestofbreed.no.

10.5
Best of Breed reserves the right to prioritize support requests at its own discretion. In general, a support request related to a Customer who has entered into a separate support agreement with Best of Breed will be given priority.

10.6
The Customer shall ensure that Best of Breed is given unhindered access to printers, computer systems, servers and/or site premises to the extent necessary for the performance of the support services.

10.7
The Customer shall not purchase support services related to the Products from other suppliers than Best of Breed, unless otherwise is agreed between the Customer and Best of Breed.

10.8
Best of Breed may provide support services related to Products directly to end users to the extent the Customer, irrespective of reason, does not fulfil its contractual support obligations towards such end users.

11 Software Products – software license etc.
11.1
The Customer, being a reseller or an end user of Products, shall at all times comply with the terms and conditions for the licensing of software as stipulated by Best of Breed and/or the licensor/manufacturer of the Products in question.

11.2
The Customer shall ensure that end users of Products enter into separate software license agreements relating to the Products, to the extent required by the licensor/manufacturer of the Products or Best of Breed.

11.3
The Customer shall not decompile, disassemble or perform any other kind of derivative work or reverse engineering on any software Products or related components purchased, licensed or otherwise obtained from Best of Breed and/or the licensor/manufacturer of the software Products.

12 Customer as reseller of Products – Resale Restrictions
12.1
The Customer shall at all times comply with any territorial, competition, licensing, sub-licensing, pricing or other restrictions related to distribution or resale of Products (“Resale Restrictions”), whether stipulated in agreements between Best of Breed and its suppliers of Products or imposed directly by Best of Breed at its own discretion.

12.2
Any breach of applicable Resale Restrictions shall constitute a breach of contract. The Customer shall be liable towards Best of Breed for any loss or damages caused by the Customer’s breach of Resale Restrictions, irrespective of whether the Customer’s conduct has been negligent or not.

12.3
The Customer’s obligations to comply with Resale Restrictions shall only apply to the extent such restrictions do not conflict with mandatory legislation.

13 Intellectual property rights related to the Products

13.1
The sale and purchase of Products shall not imply any transfer or licensing of any intellectual property rights from Best of Breed to the Customer, or vice versa, unless otherwise is explicitly agreed by the said parties, or agreed in license agreement entered into between the Customer and the licensor/manufacturer of the Products.

14 Confidentiality
14.1
The Customer undertakes not to disclose to any third party, end users of Products included, confidential information relating to its contractual relationship with Best of Breed. The term confidential information shall include, but not be limited to, prices and other individually agreed terms and conditions as well as other business sensitive information received from Best of Breed. The confidentiality undertaking of the Customer is indefinite and shall survive the expiry or termination of any agreement entered into between the Customer and Best of Breed.

15 Governing law and dispute resolution
15.1
All agreements between Best of Breed and the Customer shall be governed by and construed in accordance with the laws of Norway. Any dispute relating to interpretation or performance of the agreement shall be sought resolved amicably through negotiations. Disputes which are not settled amicably shall be referred to the exclusive jurisdiction of the ordinary courts of Norway.

15.2
Notwithstanding the foregoing, Best of Breed shall have the right to approach a competent court in Norway and in any other relevant foreign jurisdiction for the purpose of seeking injunction or other interim remedies and measures available under applicable laws of the jurisdiction in question.

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